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1. Goes to the elements of your case
Publication, falsity, defamation, fault, harm
2. Foundational.
How far away were you when you saw it?
3. Credibility.
You lied to the police, didn’t you?

Rule 403-Although Relevant, Evidence may be excluded when?

Probative value is substantially outweighed by danger of unfair prejudice
Confusion of the issues, misleading the jury
Undue delay, waste of time
Cumulative evidence

What is the standard under Rule 403?

It's a balancing test. Probative value must be SUBSTANTIALLY OUTWEIGHED by unfair prejudice

Speculation-Rule 403

A witness cannot testify to what someone was thinking, feeling, what their intentions were, what was going to happen.
Because they don’t have actual knowledge.
Examples
He wanted to kill that guy.
He was going to steal that stuff.
He felt really angr

What can a witness still testify to without speculation?

Witnesses can still testify to lay opinions under Rule 701.

Before Reagan Thomas can testify about seeing Drew Walton standing over Lane Hamilton’s body, what do you need to know? What is the objection?

Location
That he can see the two of them
That he can identify both of them
Objection: Lack of Foundation
~Before an expert can testify to an opinion, the judge needs to know he’s qualified.

“What did you do next?” I went up to the door.
“What happened after you went inside?”

We haven’t heard testimony that the witness went inside
A question cannot assume a fact until it has been testified to.
Objection: Assumes facts not in evidence

“Where do you live?”
I live in St. Paul. I’m a college student, so it’s nice to live so close to school. I like school, blah blah blah.

All she was asked was where she lived.
Narrative – Made while the other team’s witness is testifying on direct.
It means she is testifying to things beyond what he/she was asked.
Objection: Narrative

“He was wearing a black shirt?”
He was wearing a black shirt, but that doesn’t automatically make him guilty!”

You will often have combative answers with this objection.
Made after a witness answers your question on cross.
It means what it says. The witness is not responding to your question.
Objection-Non-Responsive

Objection, "Non-Responsive"
Honor: "Sustained."
You do what?____

Move to strike

Objection, "Narrative"
Honor: "Sustained."
You do what?____

Move to strike

An attorney can’t keep asking a witness the same question.

Very common when your witness is being crossed.
Objection: Asked and Answered
If you get this objection, your answer is that the witness has not answered the question.

Objection, "Cumulative"

You cannot keep offering the same evidence repeatedly.
Example – A Few Good Men
Prosecutor wanted to call 23 witnesses to testify to the same thing.
Riley Faith example.

You went into the house and turned on the lights, right?

Objection: Compound Question
One of those questions might be answered “yes,” but the other might be answered “no.”
PROPER – You went into the house? And then you turned on the lights?
You cannot ask more than one question at once.

“What did you think about that?”

Objection: Vague/overbroad

Witness – “He hit the guy in the arm.”
Attorney – “After he smashed the guy as hard as he could in the arm, what happened next?”

Objection: Misstates the evidence

What two rules must all evidence satisfy to be admissible?

Relevance (401/402) and prejudicial test (403)

What makes evidence relevant?

Goes to elements of your case
Is foundational
Goes to credibility of a witness

What standard must evidence meet to be excluded under Rule 403?

Prejudicial value must substantially outweigh the probative value of the evidence

Attorney: "You grabbed him and shook him, didn’t you?"

Objection: Compound question (Can’t ask two questions in one)

Witness: He had a look on his face like he had lost everything (from Thursday)

Objection: Speculation (Guessing what someone is thinking)

Attorney: "You expect this jury to believe that you interviewed all possible witnesses?"

Argumentative (Can’t fight with the witness)

Attorney: "You hit him in the head?"
Witness: I hit him in the head because he tried to hit me first.

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

What is a statement? Rule 801(a)

(A) – An oral or written assertion, OR
(B) – Nonverbal conduct of a person, if it is intended as an assertion.
What is an assertion? “A positive statement or declaration, often without support or reason.” – Dictionary.com

Assertion – “The light was green.”

There is a factual assertion that is either true or false.

Non-assertion – “Go Brewers!”

What fact about this statement can you dispute as being true or false?
You can’t! There is no fact to fight about here.
Usually seen with commands, exclamations.

Non-verbal assertions

Non-verbal assertions
Examples of non-verbal assertions?
Pointing
Smiling/Nodding
If it’s unclear whether the person intended it to be an assertion, it should not be admitted.
Crying
Soiling yourself if someone threatens you

What is hearsay?

A statement, other than one made by the declarant while testifying at the trial or hearing…

What is a declarant specific to hearsay?

A declarant is a person who makes a statement.
Does not include robots, zombies, Iowans…
More importantly, does not include computer printouts
E.g., lab tests that result in a computer printout analysis
Rule: A statement is hearsay only if it comes fr

“Other than one made… while testifying at trial”

What is said on the witness stand is NOT hearsay.
You will often hear this part of the rule quoted as “an out-of-court statement.”
Rule: A statement is hearsay only if it was made outside of court

Statement: Jim told me he shot that guy.

If you are offering it to prove Jim shot the guy, it is hearsay.
Objection: Hearsay, A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Police officer is on patrol. He hears a radio call that says, “Be on the lookout for a white Chevy Blazer suspected to be involved in a hit and run.” Officer pulls over and arrests the driver of a white Chevy Blazer.
Police officer testifies in court a

NO.
You are not offering the statement to try to prove that the driver was in a hit and run.
You are offering it to show its effect on the officer. Namely, he pulled over a vehicle matching that description.
Without that radio call in evidence, it mig

You want to offer the defendant’s statement, “He told me he shot that guy,” just to prove that the defendant was at a certain location

If you want to offer a statement that would otherwise be hearsay if you were offering it for its truth, it has to overcome 401/403.
You probably will not be allowed to use the statement; it is substantially prejudicial. But you can have the witness te

If someone testifies that someone said something, but doesn’t offer the statement itself, it's what?

There is NO hearsay objection.

Not hearsay by rule: 801(d): Statements which are not hearsay
Admission by Party opponent under 801(d)(2): Biggest use of “not hearsay by rule”

So in order for their statements to be admissible, the other side’s attorney has to be offering them
For Drew Walton’s statements to be admissions, the defense attorney has to be questioning a witness about them
Does not matter which side the witness is

Defendant and undercover cop are in a jail cell. Cop asks Defendant if he killed the guy on Baker Street. Defendant says, “Yeah, I did.”